Post on 09-Oct-2020
10/21/2014
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Environmental Impact Assessment and the
legal reform in Albania
Prof. Xhezair Zaganjori
Chief Justice, Supreme Court
Erjon Muharremaj PhD/c
Lecturer, School of Magistrates
EUFJE Annual Conference
Budapest, Hungary
17 – 18 October 20141
Outline
� General overview
� International legal framework
� Domestic legal framework
� Approximation with the EU legislation – acquiscommunautaire
� Further measures
� Conclusions
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ALBANIA
Southeast Europe
Area: 28,748 km2
Population: 2,831,741
Candidate country for
EU membership.
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INTRODUCTION
�Albania, rich in biodiversity of
flora and fauna:
�Flora: 29% of the European
species (its area, 0,26% of the
total area of Europe).
�300 species of medicinal plants
�350 species of trees & shrubs
� Forests: 1 million ha (36% of
the area).
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• Network of Protected Areas: 15,1 % of the
country’s territory.
• Aim: Protected Areas should reach 17% of the
territory (including the establishment of the Alpine
Park and the Underwater Protected Areas).
• Several species of fauna close to extinction. Illegal
hunting - severe problem.
• Need of improvement of the legal framework and
awareness raising campaign.
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� Protected Areas:
15.1% of the total area
15 National Parks established
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� Protection of wild flora...
[Laurus nobilis Salvia officinalis Gentiana lutea]
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... and fauna
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2014 – Moratorium on total suspension of hunting for 24 months.9
• Order of the Minister of Environment of 2007 –
Red List: includes 395 species of flora and 587
species of fauna – according to IUCN classification.
• Comprehensive and integrated measures are
needed for the protection and development of
flora and fauna: forests, pastures, wild birds and
animals.
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Endangered flora species
Enlisted in the Flora Red List as species endangered by extinction.
Their harvest in their natural habitat is forbidden. Their harvesting
can be allowed only through a special permit.
Salvia officinalis Hypericum perforatum Sanza-Gentiana lutea
Vaccinium myrtillus
Colchicum autumnaleJuniperus communis
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Albania is a party to:
� UNECE Convention on EIA in a Transboundary
Context and its Protocol;
� Aarhus Convention;
� Convention on the Protection and Use of
Transboundary Watercourses and International
Lakes;
� Convention on the Conservation of European
Wildlife and Natural Habitats;
� Convention on Transboundary Effects of
Industrial Accidents, etc.
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Transboundary agreements for the protection of
biodiversity
� Bilateral Memorandum of Understanding with
Montenegro, for the Joint Management of
Transboundary Waters (Lake Shkodra);
� Bilateral Agreement with Macedonia, for the
Protection and Sustainable Development of Lake
Ohrid;
� Bilateral Agreement with Greece for the
Establishment of the Permanent Commission for
the Transboundary Waters;
� Trilateral Agreement with Macedonia and Greece
for the protection of Lake Prespa); 13
� Bilateral Agreement with Macedonia for the
Establishment of the National Park -
Shebenik-Jabllanic;
� Bilateral Agreement with Montenegro for
the establishment of the National Park –
“Bjeshkët e Namuna”.
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• European integration – national priority.
• The Stabilization Association Agreement (SAA)
with the EU signed in 2006. In force since 2009.
• Article 108 of the SAA: The parties undertake to
develop and strengthen cooperation in the fight
against environmental degradation, in order to
promote environmental sustainability.
• National Plan for Approximation under
implementation.
• Beneficiary of the IPA, together with the other
Western Balkan countries and Turkey.
� Environmental legal framework is relatively new
compared to that of other European countries.
� First environmental policies: National
Environmental Strategy, 1993;
� National Environmental Action Plan, 1994;
� Albanian Constitution, 1998: sustainable
development (Art.59/d) and the right of public
access to environmental information (Art. 56)
become constitutional principles.
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• Law “On Environmental Protection”, 2002: EIA for the first time in the Albanian legislation;
• The entire Chapter IV dedicated to EIA: applied to all public and private projects of natural or legal persons that could have an impact on the environment;
• Article 27: transboundary context –application of the principles of the UNECE Convention on EIA;
• Law “On environmental protection from transboundary impacts”, 2007: applicable on all the projects and activities that are listed in Annex I of the Convention.
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• Repealed and replaced by Law “On
Environmental Protection”, 2011;
• Embodied the principles:
� sustainable use of natural resources;
� prevention;
� polluter pays;
� protection at a high degree;
� integration;
� public participation & transparency, etc.18
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• Included two separate provisions: on EIA and on
Environmental Strategic Assessment (ESA);
•Established the National Environmental Agency
(NEA).
•Specific Law Nr. 10 440, “On Environmental
Impact Assessment”, 2011: it set the institutional
framework for the EIA;
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• Divided the projects in 2 categories:
i. preliminary report on the EIA for
projects of Annex II;
ii. deep EIA report, for projects of
Annex I.
• The decision whether deep EIA is required,
competence of NEA.
• Rules and deadlines for the EIA procedure:
proposal of the Minister of Environment → approval by the Council of Ministers (CoM)
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• A week later, it was enacted Law nr. 10 448, 2011,
“On Environmental Permits”;
• Transposed Directive 2008/1/EC of EP and of the
Council, 15.1.2008 - integrated pollution
prevention and control
&
• Directive 2001/80/EC of EP and of the Council,
23.10.2001, on the limitation of emissions of
certain pollutants into the air from large
combustion plants.
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• Divided the environmental permits into three
types, A, B, and C, depending on the impact on
the environment.
• Competent authority for the issuance of the
environmental permits - National Licensing
Centre (NLC);
• Follows the signature of the environmental
permit by the Minister of Environment, after
the review of the application by the National
Environmental Agency (NEA).22
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• After two years - Law Nr. 91/2013, 2013, ”On
Strategic Environmental Assessment”;
• Transposed Directive 2001/42/EC of EP and of the
Council, 27.6.2001, on the assessment of the
effects of certain plans and programs on the
environment;
• SEA to be carried out in all the cases of plans and
programs for: agriculture, forests, fishing, energy,
industry, mining, transport, waste management,
water management, telecommunications, tourism,
local and national plans on urban and rural spatial
planning, landscape protection, and land use.
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• Exceptions - projects related to:
i. national security ;ii. civil emergencies ;iii. state finance and budget .
• Phases of the process:
1. informing the MoE by the proposing authority;
2. consultation with the groups of interest;
3. drafting the preliminary report;
4. consultation with the groups of interest and the
public;
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5. drafting the final SEA report;
6. consideration of the proposal;
7. declaration of the minister;
8. decision making by the NEA;
9. monitoring and reporting of the impact on the environment of the plan or program.
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• 10 bylaws enacted: CoM decisions and
minister directives:
• CoM Decision Nr. 249, 2003, “On approval of
environmental permits and the
documentation for the elements of the
environmental permit”;
• CoM Decision Nr. 268, date 24.4.2003, “On
the certificate of specialists to assess the
impact on the environment and
environmental audit”, repealed and replaced
in 2008, “On certification of specialists for EIA
and environmental audit”26
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• CoM Decision Nr. 994, 2008, “On the
participation of the public in decision-making”;
• Partly repealed by CoM Nr. 247, 2014, “On
defining the rules, requirements and
procedures for informing and including the
public in the environmental decision making”.
• Monitoring: Directorate of EIA and Permits, in
the Ministry of Environment
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EIA Procedural Provisions
Phases of the preliminary procedure of the EIA:
a. Submission of the request and accompanying
documentation by the developer to the National
Licensing Centre (NLC) → National Environmental
Agency (NEA);
b. Consultation of the NEA with the other institutions
and the publication of the request;
c. Decision making by the NEA → informing NLC & MoE &
other consulted institutions → publication of the
decision in the National Register of Licenses and
Permits.
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• EIA procedure is part of the development
consent decision;
• CoM Decision Nr. 502, 2011, “On the uniform
regulation for the control of the territorial
development”;
• Apart from the EIA, requires: the submission of
the approval from the NEA, the Forest Service
(when applicable), the water authorities, and
the relevant authorities for the engineering,
architectural, seismic, geologic, and fire
protection authorities.29
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• Regional Environmental Directorates (RED) -
Regional Branches of NEA: issue the EIA
consent – following the EIA Report;
• Local Government Territorial Adjustment
Council LGTA (small projects), & National
Council for the Territorial Adjustment NCTA
(large projects) grant the development
consent.
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• EIA procedure is also part of the permitting
procedure;
• Law Nr.10 081, 2009, “On licenses,
authorizations and permits in the Republic of
Albania” - Permits that allow the activities that
can have an impact on:
i. water reserves;
ii. use of ozone depleting substances;
iii. waste management;
iv. fisheries and aquaculture;
v. forests, meadows, medicinal plants;
vi. wild fauna, hunting; &
vii. licensing of the experts.
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• NEA → relevant ministries & REA → LGU.
• Drawbacks:
a. No compliance with the EIA Directive and
Directive 92/32/EEC and Directive
2009/147/EC – no “one stop shop” on EIA,
for a unified and fully informed decision;
b. absence of provisions on cumulating of
projects - each project has to be evaluated
separately for EIA
c. no provisions for preventing the possibility
of breaking-up the big projects.
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• For the linear infrastructure projects, the total
length is considered: if the whole project
exceeds the minimal length for the EIA
procedure, it must be carried out.
• Appeals:
- Administrative review, before the NLC, or the
other decision making institution. Superior
authority – MoE.
- Judicial review, before the Administrative
Court → Appeal → Supreme Court.
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Access to environmental information
• Constitution (Art. 56);
• Law “On Environmental Protection”;
• CoM Decision Nr. 16, 2012 “On Public Access
to Environmental Information”;
• Prime Minister's Order Nr. 202, 2005, “On
improving transparency through an increased
use of the internet and improvement of
existing websites”
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• Law on EIA: any interested party, has the right
of the administrative appeal, against the acts or
omissions of the ministry.
• Law on Environment Protection: the right to
lodge a judicial appeal in case of a threat to the
environment, pollution or its damage
• The public (which includes NGO’s) have the
right: a) to request from the public authorities
to take the necessary measures; b) to file a
claim in the court against the public authority,
or the legal and natural person that have caused
environmental damage, or that threaten to
damage the environment.
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• If a person is denied legal standing, he/she can
seek the remedy before a court.
• Definition of the public:
-Law on Environment Protection: one or more
natural or legal persons…associations,
organizations and their groupings;
-CoM Decision Nr. 247, 2014: every interested
party has the right to lodge an administrative
appeal during the EIA procedure.
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• Definition of the interested party - Code of
Administrative Procedures: any natural or legal
person, or state body, whose legal rights and
competence have been infringed, or might be
infringed during the administrative procedure.
• Law 49/2012, “On the organization and
functioning of the Administrative Courts and the
judicial settlement of the administrative
conflicts”: the right to lodge a claim at the court
to any subject who pretends that a legal right or
interest has been infringed by an act or omission
of the public body.
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• Individuals need to be affected, in order to
challenge an EIA decision at the court.
• No legal provisions as to the manner that an
individual has to be affected, this is decided by
the court on a case by case basis.
• Both administrative and judicial decisions can
have suspending effects.
• Courts can order the suspension of the EIA
decision when an irreparable damage can be
caused to the interests of the claimant.
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• Courts can change or amend any administrative
decisions, including imposing new conditions
regarding environmental matters.
• Monitoring is obligatory.
• State Inspectorate of Environment, Forests, and
Waters has monitoring and sanctioning
competences.
• Fines for non-compliance: up to 2.000.000
Albanian lek (ALL), approximately 7,200.00 Euro.
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• Criminal sanctions can be imposed when the
developer presents falsified documentation during
the EIA proceedings.
• Decisive role for the judiciary.
• Awareness raising for the environmental issues –
equally important.
• Judge Learned Hand (1944): “Liberty lies in the
hearts of men and women. When it dies there, no
constitution, no law, no court can save it; no
constitution, no law no court can even do much to
help it”.
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THANK YOU!
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